BC Injury Law and ICBC Claims Blog

This Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice. Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Rule 9’

In what, to my knowledge, is the first BC injury case commenting on the weight a court should place on “After the Event” insurance when awarding costs post trial, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this.

In the recent case (Clubine v. Paniagua) the Plaintiff was injured in a crash and sued for damages. Prior to trial the Defendant offered to resolve the claim for a total of $94,848.32 plus costs and disbursements. The Plaintiff rejected this offer and proceeded to trial where he was awarded a total of $77,224.32 in damages. The Defendant asked for costs of the trial arguing their offer should have been accepted.

The Plaintiff had ATE insurance which covers some of these adverse costs consequences. The Court was asked to take this factor into account in stripping the plaintiff post-offer costs and making the Plaintiff pay the Defendant’s trial costs. In finding this was an appropriate factor to consider Madam Justice Watchuk provided the following reasons:

[27] On the costs application it was disclosed that the plaintiff purchased adverse cost insurance known as “After-the-Event” (“ATE”) insurance prior to trial. In submissions the plaintiff explained that the ATE insurance would cover the defendant’s disbursements and costs from the date of the offer if costs were awarded against the plaintiff, and would also pay for the plaintiff’s disbursements incurred but not awarded from the date of the offer. It will not pay for the plaintiff’s costs following the date of the offer.

[28] The defendant submits that the ATE insurance effectively undermines the intent of the offer to settle rule. It allows a plaintiff to avoid the punitive costs consequences of the rule, ignore reasonable offers to settle, and with impunity take their chance at trial. The winnowing function of the costs rules is obviated by ATE insurance; doubtful cases can proceed through litigation without risk of adverse costs consequences. I conclude in this case that this insurance had such an effect.

[29] The ATE insurance in this case strongly weighs in favour of the defendant’s costs application. ..

[30] The defendant made reasonable efforts to settle this matter. The plaintiff’s failure to accept the reasonable offer to settle should have costs consequences. The ATE insurance held by the plaintiff is a factor that further weighs against costs following the event in these circumstances.

[31] The offer was open to the eve of trial, July 22, 2016. In these circumstances the plaintiff is entitled to only his pre-trial costs of $6,500 plus disbursements. The defendant’s application is granted and she is entitled to the costs and disbursements of the trial.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff full trial costs after the Plaintiff failed to beat an ICBC settlement offer by a “marginal difference“.

In today’s case (Goguen v. Maddalena) the Plaintiff was injured in a collision the Defendant accepted fault for. The Plaintiff proceeded to trial where he was awarded total damages of $174,360.84.

Prior to trial ICBC made a formal offer to settle for $175,000. The Defendant argued that the Plaintiff should be deprived of some of his post offer costs for failing to beat the settlement attempt. In finding that a “marginal difference” does not warrant such an outcome Madam Justice Forth provided the following reasons:

[39] The plaintiff submits that the Defendant’s Offer was greater than the judgment amount by only $639.16, or approximately 0.5%. He argues that this marginal difference should afford little weight. In support, the plaintiff cites Saopaseuth v. Phavongkham, 2015 BCSC 45 at para. 74, in which Bernard J. noted that an award 2% greater than an offer to settle “suggests that little weight should be given to this factor”. Furthermore, in Zhao v. Yu, 2015 BCSC 2342 at para. 11, Baker J. held that an offer that exceeded an award by $1,800 was “of little significance in arriving at a decision about costs”.

[40] The defendant submits that the Defendant’s Offer was only with respect to the plaintiff’s tort claim and that acceptance of the offer would have allowed the plaintiff to collect Part 7 ICBC benefits. Therefore, the Defendant’s Offer exceeds the trial award by a larger margin that what appears on its face.

[41] The plaintiff, in reply, submits that he understood that any settlement offers made by the defendant were full settlements of both the tort claim and Part 7 claims against ICBC, and that at no time did defence counsel convey that Part 7 benefits would still be available in the event that the Defendant’s Offer was accepted.

[42] With respect to Part 7 benefits, I note the first page of the Defendant’s Offer reads in part:

The Settlement Payment:

(a) is offered after taking into account Part 7 benefits paid or payable, pursuant to section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force before June 1, 2007) and/or pursuant to section 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force on or after June 1, 2007);

[43] Neither counsel have provided submissions on the implications of this settlement term or the quantum of Part 7 benefits that would have likely been available to the plaintiff. As a result, it would be speculative of me to attach significant weight to the submissions on these points.

[44] Considering the marginal difference between the Defendant’s Offer and the ultimate award, this factor is of little significance in my determination…

[52] Taken together, the factors pursuant to subrule 9-1(6) weigh in favor of the plaintiff. As a result, I exercise my discretion to award the plaintiff costs pursuant to R 9-1(5)(c). The plaintiff is entitled to his costs at Scale B.

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, confirming that an order for double costs does not also mean a party is entitled to double disbursements.

In today’s case (Lafond v. Mandair) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Plaintiff made a formal settlement offer of $300,000. At trial the Plaintiff beat this quantum being awarded just over $343,000.

The Plaintiff sought double costs and disbursements. The Defendant agreed double costs were in order but argued that double disbursements were not recoverable. The Court agreed and in doing so provided the following succinct reasons:

[14] Double costs may be awarded for some or all steps taken after delivery of the offer to settle. A step in the proceeding is a formal step that moves the action forward: Canadian National Railway Company v. Chiu, 2014 BCSC 75 at para. 7.

[15] Incurring a disbursement is not a formal step as contemplated by the Civil Rules.

[16] I, therefore, conclude that under Rule 9-1(5)(b), double disbursements are not to be awarded as part of double costs. Thus, a successful offer to settle can be rewarded with an entitlement to double costs for tariff items, together with actual and reasonable disbursements.

Reasons for judgement were released today demonstrating the Court’s discretion for costs following trial where formal settlement offers were exchanged.

In today’s case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Defendant presented a formal settlement offer of $185,000. The Court noted that “some of the plaintiff’s initial negotiating positions were clearly inflated” but ultimately it was reasonable for the Plaintiff to refuse the Defendant’s offer and proceed to trial in the face of medical evidence supporting her alleged claim of chronic pain and related disability.

The decision proved costly with a jury awarding the Plaintiff damages of $37,800. The Defendant asked to be awarded post offer costs and to strip the Plaintiff of her post offer costs. The Court refused noting the Plaintiff is of modest means and having her pay Defendant costs would reduce the verdict to a Pyrric victory. In awarding the Plaintiff costs Madam Justice Power provided the following reasons:

[36] It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means. Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.

[37] As a result, although not determinative, the relative financial circumstances of the plaintiff and the defendant insurer are a consideration that I have taken into account.

[38] I am not persuaded that in these circumstances the court should exercise the discretion afforded to it under Rule 9-1(4) and (5). Having considered all of the relevant factors, I find that the plaintiff is entitled to her costs at Scale B and disbursements, including the cost of this application. The defendants’ application is dismissed.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff double costs after obtaining judgement nearly doubling her pre trial formal settlement offer.

In the recent case (Risling v. Riches-Glazema) the Plaintiff was inured in a motor vehicle collision and prior to trial made a formal settlement offer of $315,000. The Defendants rejected the offer and proceeded to trial where damages of $622,500 were awarded. The Plaintiff sought and was granted post offer double costs. In agreeing these were warranted Mr. Justice Affleck provided the following reasons:

[7] In my view:

a) The plaintiff’s case was well known to the defendants at the time of the offer. The plaintiff had been examined for discovery on two occasions; had attended two medical examinations at the request of the defendants, and a mediation had taken place in June 2016;

b) the offer was made one week before the trial began which gave the defendants a full opportunity to consider it;

c) the offer had a relationship to the claim and could not be characterized as a “nuisance offer”; and

d) the offer was expressed in plain language and thus easily evaluated.

[8] The final judgment of the court greatly exceeded the offer. The plaintiff submits her offer was a true attempt to reach a reasonable compromise of the claim and that the rationale for the double cost rule is to encourage parties to settle by taking a realistic view of the probable outcome of a trial. The plaintiff submits that rationale would be thwarted if in the present circumstances she is not entitled to double costs.

…

[10] The defendants submit their limited understanding of the case made it difficult to quantify the claim and that, while the rationale for the rule for double costs is acknowledged, the defendants ought not to have been deterred from defending the claim for fear of a “punishing costs award”. Currie v. McKinnon, 2012 BCSC 1165 is relied on in support of that argument.

[11] The defendants also submit that “no rationale for the offer was provided” in the plaintiff’s letter of August 15, 2016.

[12] I do not agree that no rationale was provided. The plaintiff described the heads of damages she would advance at the trial and advised that the offer took into account “Part 7 Benefits paid or payable pursuant to Section 83 of the Insurance (Vehicle) Act”. Furthermore, the defendants had an opportunity on the mediation to canvas fully with the plaintiff’s legal advisers the extent of the plaintiff’s claim and the evidence at trial which would be advanced to support the claim.

[13] I am also mindful that in Hartshorne the Court of Appeal expressed the view that the list of factors described in para. 27 of its reasons need not be relevant in every case.

[14] Currie v. McKinnon does not help the defendants on this application. That case involved a personal injury claim with an award of damages which fell within the monetary jurisdiction of the Small Claims Court. Double costs were not awarded. In short Currie v. McKinnon is distinguishable on its facts from the matter before me to such an extent that it cannot usefully be called in aid of the defendants’ argument.

[15] The plaintiff is entitled to the costs of this action including double costs from the date of the offer.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, stripping a Plaintiff of post offer costs after receiving a jury award less than a pre-trial defence settlement offer.

In today’s case (Rutter v. Vadnais) the Plaintiff was injured and sued for damages. About 2 years prior to trial the Defendant offered to settle for $50,000. The offer was rejected and at trial a jury awarded global damages of $20,000.

The Court stripped the Plaintiff of costs from the time of the offer forward which would significantly impact the award given the costs of running the trial. In reaching this decision Madam Justice Brown provided the following reasons:

[12] Turning to the effect of the offers exchanged in this matter, Rule 9-1(5) and (6) provides:

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.

[am. B.C. Reg. 119/2010, Sch. A, s. 21.]

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

[13] The plaintiff in this case had strong medical opinions to support her position. The defence position was contrary to the weight of the medical evidence. Although the jury award is less than that offered by the defendant, I am not persuaded that the offer made was one that ought reasonably to have been accepted either on the date that the offer was delivered or any later date. As Madam Justice Adair said in Currie v. McKinnon, 2012 BCSC 1165 at para. 20: “While the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order.”

[14] Second, while the amount recovered is less than the settlement offer, that is rarely a determinative factor, particularly as jury awards are more difficult to predict than judge assessments (Smagh v. Bumbrah, 2009 BCSC 623 at para. 13).

[15] The relative financial circumstances are also a neutral factor in this case. Although Ms. Rutter does have some assets, I am not able to say that losing her costs or paying Ms. Vadnais her costs would not have a dramatic financial effect on Ms. Rutter.

[16] Finally, although the defendant suggests that the history of negotiations between the parties is such that the offer of $50,000 was reasonable in response to the plaintiffs immediately preceding offer of $61,000, I am persuaded by the plaintiff’s response submissions that there were good reasons for her increasing her offer beyond $61,000 “as her retraining exposed her to physical demands of what she could expect to encounter ‘on the ward’ this showed her that her loss was likely to be more than she had previously thought.” The offer of $61,000 was made at the start of her retraining.

[17] In conclusion, having considered the submissions of the parties and the factors set out in Rule 9-1, the plaintiff will have her costs of the action at Scale B until March 15, 2014, a reasonable time in which to consider the defendant’s offer. The parties will bear their own costs thereafter.

In a demonstration of the judicial flexibility that exists under the BC Supreme Court Rules when assessing costs consequences following trials with formal offers in place, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs despite failing to beat a Defense formal settlement offer.

In today’s case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision. Both parties were found partially at fault. The Plaintiff suffered various physical injuries but also advanced a brain injury claim which was not accepted at trial. Prior to trial ICBC issued a formal settlement offer of $125,000. At trial the Plaintiff’s damages were assessed at $78,897 less 30% to reflect the plaintiff’s contributory negligence.

ICBC sought to strip the Plaintiff of post offer costs as a result but the Court exercised its discretion to award the Plaintiff full costs. The Court was influenced by the fact that the costs of the prosecution were significant and an award of costs to ICBC would strip the Plaintiff of the totality of his damages. In reaching this decision Madam Justice Sharma provided the following reasons:

[29] The plaintiff submitted that the award of costs in this case exceeds the total amount of the judgment. In his written submissions, the plaintiff states that “[i]f the court orders that the Plaintiff is to pay costs to ICBC, it means that Mr. Anderson must pay the entire judgment award to ICBC, instead of spending this money on his health condition and prognosis.” I agree that is a significant factor if the court is to be mindful that costs awards should not punish plaintiffs from taking forward meritorious claims, as discussed above.

[30] The plaintiff also says that the defendant was defended and funded by the insurer, whereas Mr. Anderson is impecunious having lost the ability to work, and previous cases have held this is a proper consideration: Smith v. Tedford, 2010 BCCA 302; Hunter v. Chandler, 2010 BCSC 1124 at paras. 23-25; Gregory v. Insurance Corporation of British Columbia, 2010 BCSC 1369 at para. 9; andMartin v. Lavigne at para. 23. I agree. Although there was no evidence before me about Mr. Anderson’s impecuniosity, I have no reason to doubt counsel’s word. Certainly at trial the evidence was consistent with counsel’s statement.

[31] Based on these factors (and all others), the plaintiff submits it would be unfair and unreasonable that the plaintiff be ordered to pay costs to the defendant.

[32] Finally, the plaintiff points to other factors that he says are relevant to the court’s exercise of discretion. He points out that two expert doctors did conclude that he suffered a brain injury. He also says it was not disputed that after the accident he displayed a number of characteristics consistent with having suffered a brain injury, including the fact that he had a flat affect and his behaviour around his family was different, as well as showing increased irritability, frustration and anger. The plaintiff also points out that the brain scans clearly show that he had brain lesions consistent with a brain injury. The plaintiff had increased difficulties with concentration and learning new tasks. Although I made a finding that both his alcohol consumption and anxiety had significant impacts on his life following the accident, the plaintiff suggests he should not be faulted for failing to guess that those factors would be essentially held against him when making a conclusion about whether he had a brain injury or not.

[33] The award of costs is an exercise of the court’s discretion, guided by the legal principles identified above. This is not an exercise of counting up which factors favour which party and doing a mathematical calculation. The court must take into account all of the factors weighed against the circumstances of the case. Remembering that ultimately the result must not impose injustice or unfairness on either party, I exercise my discretion and conclude the normal rule of apportionment does not apply and therefore the plaintiff is entitled to 100% of his costs at trial. Because he has been successful on this application, I also award him the costs of this hearing.

Adding to this site’s database of ICBC Unidentified Motorist prosecutions, reasons for judgement were published today by the BC Supreme Court, Kamloops Registry, finding that the Summary Judgement rule cannot be used to determine if a plaintiff made all reasonable efforts to identify the at fault driver which is a prerequisite to a successful unidentified motorist prosecution.

In today’s case (Lapointe v. ICBC) the Plaintiff used the summary judgement rule to strip ICBC’s defence alleging the Plaintiff failed to make all reasonable efforts to identify the at fault motorist. ICBC appealed and Mr. Justice Myers overturned the earlier ruling noting the Court can only address this issue when determining liability and cannot address this defense in a piecemeal fashion. In reaching this decision the Court provided the following reasons:

[9] I do not agree with the plaintiff’s argument which artificially separates the cause of action against the unknown driver or owner from the claim against ICBC. Although it is common practice to name John Does as substitutes for the driver and owner, the section does not require that; an action may be brought against ICBC only. It is obvious that there is no John Doe to serve and no default judgment can be taken against the unknown driver or owner. ICBC is fully in control of the defence until the time of judgment or the driver or owner is found. I do not think there is a separate claim against under ICBC under s. 24 as the plaintiff maintains.

[10] Therefore, a decision on s. 24(5) alone is not determinative of a claim and cannot result in a judgment; it is only a decision on an issue. On the basis of Century Services, it is therefore not amenable to a Rule 9-6 application.

[11] That is sufficient to allow the appeal but there is a further related point (not argued by ICBC) which reinforces this conclusion. The obligation to attempt to locate the driver or owner is a continuing one in this sense: if facts come to light that make the identity ascertainable, the plaintiff is no doubt obligated to follow up on that information. And, if the identities become known, section 24(6) provides that the driver or owner must to be substituted for ICBC in spite of any limitation period. The wording of section 24(5) is that “a judgment against the corporation must not be given unless the court is satisfied that…”. This contemplates a single judgment.

[12] I therefore do not think that a separate decision on section 24(5) can be made in advance of a decision on liability as a whole. Put another way, the time at which the court must be satisfied as to the factors in s. 24(5) is the time of the determination of liability for the accident. The opposite interpretation would allow for a scenario where s. 24(5) is determined in favour of a plaintiff, and the driver becomes known before the trial on liability. It would then make the substitution for ICBC impossible as the matter would be res judicata.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, highlighting the judicial flexibility and potential financial risks that come into play when a formal offer of settlement is not beat at trial.

In today’s case (Park v. Targonski) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Defendants made a formal offer of $321,407. The Plaintiff declined this offer and proceeded to trial where she was awarded $302,643 after applicable statutory deductions.

The Defendants asked the Court to strip the Plaintiff of her post offer costs and disbursements of $56,207 and further to pay the Defendants’ post offer costs and disbursements of $63,769.

The Court found that the offer ought to have been accepted and that it was appropriate to strip the Plaintiff of her post offer costs and disbursements. The Court noted, however, that awarding the Defendant their costs would create “an unduly punitive sanction”. In reaching this conclusion Mr. Justice Fitch provided the following reasons:

[47] Upon consideration of the above-noted factors, as well as the overall purpose of the rules respecting formal offers, I conclude that, pursuant to Rule 9-1(6)(a), the plaintiff shall have her costs at Scale B up to the date of the offer to settle, but not thereafter. The costs sanction to the plaintiff arising from this order is significant. She will be denied her costs and disbursements totaling $56,207 from the date of service of the offer to settle.

[48] I have given close consideration to whether the defendants should be awarded all or a portion of their costs for steps taken in the proceeding after service of the offer to settle pursuant to Rule 9-1(6)(d). Balancing the applicable considerations as best I can, I have determined not to make this order. In my view, it is unnecessary to make this order to give effect to the purposes underlying the rule. More importantly, and for the reasons already given, doing so in this case would visit upon the plaintiff an unduly punitive sanction – one that fails to give any weight: (1) to the challenges associated with forecasting how a court might assess her loss of future earning capacity claim; and (2) to the plaintiff’s compromised ability to accurately evaluate her own situation.

[49] The parties will bear their own costs arising out of this application.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, refusing to award discretionary costs where a defence formal settlement offer was not beat by a plaintiff by an “almost negligible difference“.

In today’s case (Zhao v. Yu) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Defendant issued a formal settlement offer of $93,500. The Plaintiff declined and proceeded to trial where damages of $91,700 were assessed. The Defendant asked for trial costs but the Court dismissed the application finding it was not unreasonable for the plaintiff to reject the offer and proceed to trial. In reaching this decision Madam Justice Baker provided the following reasons:

[13] While in hindsight the Defendant’s Offer was indeed reasonable, that is not the test. Rule 9-1(5) and 9-1(6) were not intended, in my view, to punish parties merely because the party’s assessment of the value of the claim proves incorrect, unless that assessment was based on irrelevant considerations; a clearly inadequate review of the available evidence and applicable authorities, or was, in view of the facts known at the time, unreasonable.

[14] Here, the parties differed, as did some of the expert witnesses, about the Plaintiff’s prognosis; and the extent to which the injuries resulting from the accident, would affect his capacity to earn income in future. While the Plaintiff did not succeed on this issue, I cannot say it was unreasonable for him to pursue the claim; or to believe that there was some prospect of success, even if there was a risk he would not succeed. I note also the Plaintiff’s submission, which I consider persuasive, that even a slightly higher award for special costs or non-pecuniary damages would have resulted in an awarded that exceeded the Defendant’s Offer.

[15] Having weighed the relevant factors, I am satisfied that this is a case in which I should award the Plaintiff the costs of the entire action, including all steps taken after the date of delivery of the Defendant’s offer, notwithstanding the Defendant’s Offer.

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